R v Hagarty

[2001] QCA 558

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hagarty [2001] QCA 558

PARTIES:

R
v
HAGARTY, Grantley James
(appellant)

FILE NO/S:

CA No 243 of 2001
DC No 29 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maryborough

DELIVERED ON:

7 December 2001

DELIVERED AT:

Brisbane

HEARING DATE:

27 November 2001

JUDGES:

Davies and Williams JJA, Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where appellant contended in evidence that the blow, which resulted in injuries amounting to grievous bodily harm, was delivered in self-defence – where evidence by witnesses supported contention that appellant had not been assaulted by complainant – where nevertheless open to the jury to conclude appellant had been assaulted in the way he claimed – whether trial judge misdirected jury when elaborating upon the requirement that the force used in self-defence must be reasonably necessary to make effectual defence against the assault under s 271(1) of the Code – where test under s 271(1) is an objective one

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – OTHER MATTERS – where appellant, in contending that blow was delivered in self-defence, asserted that complainant held a glass bottle – whether trial judge erred in failing to leave to the jury the second limb of self-defence as set out in s 271(2) of the Code

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – SELF-DEFENCE AND OTHER FORMS OF DEFENCE – GENERALLY – tests under s 271(1) and s 271(2) of the Code

Criminal Code, s 271(1), s 271(2)

Gray (1998) 98 A Crim R 589, applied
Lawrie [1986] 2 Qd R 502, applied
Marwey (1977) 138 CLR 630, applied
Muratovic [1967] Qd R 15, applied
R v Pangilinan [2001] 1 Qd R 56, referred to
Stanik [2001] WASCA 333, referred to

Zecevic v DPP (Vic) (1987) 162 CLR 645, referred to

COUNSEL:

J M McLennan for the appellant
M R Byrne for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. DAVIES JA:  I agree that this appeal must be dismissed for the reasons given by Williams JA.

1. It is important to appreciate that s 271, unlike the common law, distinguishes between and applies different tests for determining whether self-defence is excluded in the cases of minor and major assaults.[1]  In both cases, at common law, the question is "whether the accused believed on reasonable grounds that it was necessary in self-defence to do what he did".[2]

   [1]The terms "minor" and "major" are used, for convenience, in…